B H Constructions v Parramatta City Council

Land and Environment Court

of New South Wales

CITATION:

B H Constructions v Parramatta City Council [2007] NSWLEC 110

PARTIES:

APPLICANT
B H Constructions

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

11181 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Consent :- Modification to development apllication, unlawful construction, streetscape

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979; s 96
Parramatta Local Environmental Plan 2001

CASES CITED:

B & H Constructions v Parramatta City Council [2006] NSWLEC 204

DATES OF HEARING:

12-13/12/2006 and 24-25/01/2007
Orders issued on: 25/01/2007

 
DATE OF JUDGMENT: 

8 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr I Hemmings, barrister
Instructed by: Mr C Gough, solicitor
Of: Storey & Gough

RESPONDENT
Mr A Galasso, SC
Instructed by: Mr T O'Connor, solicitor
Of: Houston, Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

25 January 2007

11181 of 2005 B & H Constructions v Parramatta City Council

JUDGMENT

Introduction

1 This appeal relates to an application under s 96 of the Environmental Planning and Assessment Act 1979 ("the application") to modify Development Consent No. 923/2003 ("the consent") which is for a multiunit housing development at 718-722 Victoria Road, Ermington ("the site").

2 The 3726 sq m site is situated on the corner of Fitzgerald Road and Victoria Road. Surrounding residential development includes a mixture of housing forms with adjoining development comprising detached houses.

3 The consent, which was issued on 31 December 2002, involves the demolition of three dwelling houses and the construction of a multi-unit housing development containing 22 dwellings above a basement car park. The building has now been constructed and there is no dispute that it is not in compliance with the consent even taking into account a number of inconsistencies within the plans associated with the consent.

Proposed modifications

4 The proposed modifications to the consent for which approval is now sought include various elements of the existing building that do not comply with the consent and which are to be retained. Significantly there are also proposed a number of alterations to be made to the building that are not reflected in the consent, with such alterations being intended to make the building more responsive to the streetscape. There are numerous other design and detail changes proposed which are to rectify various matters of concern to the council.

5 There have been two previous s 96 applications for this development. The first in 2004 was refused by the council in February 2005. The second was lodged on 13 May 2005 and an appeal was subsequently filed on the basis of the deemed refusal of that application. That appeal B & H Constructions v Parramatta City Council [2006] NSWLEC 204 was heard by Commissioner Tuor and subsequently dismissed on 24 April 2006.

6 In her judgement Commissioner Tuor deals with the history and details of the various applications at length and the applicable statutory planning provisions and these matters do not need to be repeated.

Advertising and council's decision

7 The application